Two important preliminary points All modern systems provide for the occasional application of foreign law For several reasons eg Parties legitimate expectations Personal autonomy Comitysovereignty ID: 278692
Download Presentation The PPT/PDF document "Background" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
Background
Two important preliminary points:All modern systems provide for the (occasional) application of foreign lawFor several reasons; e.g.:Parties’ legitimate expectationsPersonal autonomyComity/sovereigntyChild’s best interestProtection of vulnerable partiesJudges don’t know/can’t be assumed to know foreign lawWhy care about foreign law is proved?Globalisation = more int’l disputesCivil justice crisis, increased importance of proportionality
1Slide2
The typical common law approach
Foreign law must be pleadedForeign law must be proved“Foreign law must be proved by the testimony of [party-appointed] expert[s]” (J. Walker, Halsbury’s Laws of Canada, 2011)Same approach traditionally adopted in QuebecA lengthy, cumbersome, one-size-fits-all approachAdditional (potential) problem: partisan spin to experts’ opinionsTwo problems:Problems of proportionality
Problems of coherence
2Slide3
Problems of proportionality
Four questionable premisesGetting it right on points of foreign law is of utmost importanceThe involvement of experts is always necessaryA single, court-appointed expert won’t doA written report won’t suffice; exam/x-exam are necessary3Slide4
Problems of proportionality
An eye-opening case: Bodum USA v. La Cafetière Inc., 621 F.3d 624 (7th Cir. 2010)Majority:French law readily available in English“Lawyers who testify to the meaning of foreign law, whether they are practitioners or professors, are paid for their testimony and selected on the basis of the convergence of their views with the litigating position of the client, or their willingness to fall in with the views urged upon them by the client.”Secondary sources will usually suffice, and may even be preferableDissent:
“There is no need, however, to disparage oral testimony from experts in the foreign law. That kind of testimony has been used by responsible lawyers for years, and there will be many instances in which it is adequate by itself or it provides a helpful gloss on the literature.”
4Slide5
Problems of coherence
Consider how judges use foreign law when they interpret local lawCurrent practice:Experts are rarely involvedJudges carry out comparative law research independentlyNo strict requirement to give parties opportunity to commentWhere’s the incoherence?Interest in getting it right on foreign law much stronger here5Slide6
The good news
Quebec judges have all the tools they need“2809. Judicial notice may be taken of [foreign law], provided that it has been pleaded. The court may also require that proof be made of such law; this may be done, among other means, by expert testimony or by the production of a certificate drawn up by a jurisconsult.”Judges are given complete control over the process2809’s potential remains untapped; change in practice is needed:
Traditional practice should become option of last resort
Judges should first look for secondary sources
Experts should only be involved if/to the extent that is
necessary
Court-appointed expert should be the norm
Expert(s
) should only file written report—no exam/cross-exam
6Slide7
A word on interprovincial disputes
Who’s best placed to advise on a difficult point of Ontario lawAn Ontario judge…There seems to be a compelling case for increased judicial cooperationJudicial cooperation already a reality re: enforcement of judgmentsForeign initiativesEuropean Convention of 1968Bilateral agreements entered into by NSW Supreme Court7